- Since January 1, 2002, a general limitation period has applied. Claims become time-barred in 3 years, not counting the year in which the claim became due.
- Insofar as claims are to be settled according to HOAI, the due date according to § 8 HOAI a. F., now § 15 HOAI n. F., only occurs after a verifiable final or interim invoice has been issued. The engineer can therefore control the due date himself.
- If the invoice is not verifiable, it will be deemed verifiable upon the expiry of two months, at the latest from this point in time the invoice shall be deemed verifiable.
- Fee claims that are not to be settled according to HOAI are already due upon provision of the complete service to which the engineer has committed himself, without him having prepared a bill. So he does not have the due date in his own hands.
- Settlements that go back to an old contractual relationship, which was concluded before January 1, 2002, do not fall under the now general three-year statute of limitations, but rather come under the two-year statute of limitations among merchants, i.e. also corporations, in four years, again not counting the year of invoicing.
New Year's Eve is the end
The HOAI, like the VOB/B, has a provision whereby the contracting engineer is responsible for determining the due date of his invoice. For claims that are to be settled according to the HOAI, the following applies, insofar as a contractual relationship exists to which the old HOAI applies, which is likely to still be the case as of now: § 8 HOAI a. F., that a fee claim, regardless of whether it is based on a final invoice or an advance invoice, only becomes due when the contractually agreed engineering service has been provided and a verifiable invoice has been submitted. The same is now regulated by § 15 HOAI n. F. So as long as no invoice has been submitted, the statute of limitations does not apply. It is entirely up to the engineer to make his fee claims due by invoicing after the service has been provided. A similar regulation is contained in §§ 14, 16 VOB/B. There, too, it is up to the contractor to trigger the due date of his claim for compensation by issuing a verifiable invoice. According to § 16 No. 3 VOB/B, the final invoice amount is due at the latest within 2 months of receipt of the invoice. The VOB/B final invoice is therefore subject to a further deadline in order to calculate the starting point of the limitation period. In this case, a further two months must elapse after the client has received the final invoice before the due date occurs. The situation is different for invoices from engineers and architects in accordance with HOAI. In this case, the due date occurs immediately upon presentation of an invoice that is ready for review. If the invoice is not auditable, for example because it does not comply with the HOAI or the contractual relationship, the due date is initially not met. However, after two months have passed, even if the HOAI calculation is not verifiable, verifiability is assumed, with the further consequence that the statute of limitations only begins to run from this point in time.
However, it is risky to rely on this, because it assumes that although the invoice has been issued, the invoice has not become due for payment due to a lack of verifiability and is only deemed to be due after a period of two months. So if a HOAI invoice is issued with a period of less than two months until December 31 of a year, it may or may not be due in the old year or only in the following year.
The case becomes even more difficult if the recipient of the invoice does not report the HOAI invoice as verifiable, but it is actually verifiable.
In all these cases, the first thing to decide is whether the invoice is verifiable or not verifiable, with the consequence that the beginning of the limitation period depends on this determination.
Once this point in time has been determined, the statute of limitations runs for three years, beginning with the year following the year in which the claim fell due.
Example: Invoice issued and received in April 2006. Limitation period begins on December 31, 2009.
In contrast to popular belief, sending a reminder does not suspend the statute of limitations. The statute of limitations is suspended either when the parties involved negotiate the settlement of the invoice, whereby there must be a genuine mutual negotiation. The mere suggestion that negotiations should take place as to whether the limitation period could be postponed is not enough. Both parties must make a recognizable effort to prevent the onset of the statute of limitations. The period of these negotiations is added to the statutory period. If the negotiations are unsuccessful, the statute of limitations is further suspended for three months. Then the remaining time from the old statute of limitations begins to run.
Example: Invoice issued on June 30, 2006, standard expiry of the limitation period on December 31, 2009. In December 2009, 10 days before December 31, 2009, the parties negotiate whether the defense of the statute of limitations should be waived. The invoice recipient wants to consider this, but rejects it after a reflection period of 2 weeks. The consequence is that these two weeks plus three months are added to the original limitation period, plus the remaining period from the old limitation period, i.e. as follows:
31.12.2009 regular period of limitation, plus 2 weeks of negotiation time 14.01.2010 plus 3 months 14.04.2010, plus the remaining term of the period still to run from December 10 days 24.04.2010.
Another way to suspend the statute of limitations is to assert a claim in court, either by means of a payment order or a lawsuit. In this case, it is sufficient if the payment order or the lawsuit is submitted to the court before December 31, 2009. From the time a claim is pending, the statute of limitations is suspended. However, the claimant must then immediately pay the court costs upon request by the court so that the asserted claim is also served on the defendant. If this service does not take place until the new year, i.e. 2010, it is assumed that the claim was already asserted before December 31, 2009 by virtue of the legal proceedings.
In general, if the outcome of the negotiations regarding a waiver of the statute of limitations is positive, it can also be contractually agreed that the objection of the statute of limitations will be waived until further notice. This declaration is usually linked to a further declaration in which it is agreed:
I waive the defense of the statute of limitations until further notice, insofar as the latter has not already occurred.
If such an agreement exists, the recipient of the invoice can no longer claim that the claim settled in the invoice is time-barred. If nothing happens after the declaration to waive the objection of the statute of limitations, this declaration now also becomes time-barred again in 3 years, the year of the declaration included.
However, since this declaration is only binding on one side, it can be revoked, since the defense of the statute of limitations has only been waived until further notice. The consequence of the revocation is that the waiver that has been in effect until then is treated as a suspension.
After the revocation, the engineer still has 3 months plus the remaining time from the old limitation period to assert his claims, otherwise they are definitively time-barred.
Questions of limitation are tricky. It is strongly advised to seek expert advice if there is any concern that claims may become time-barred.
The matter becomes even more difficult when claims are settled that do not fall under the HOAI. These claims become due without invoicing when the service has been provided in full. Since architectural and engineering services do not fall under the provisions of VOB/B, they cannot claim the privileges of VOB/B and take refuge in the fact that an invoice has not yet been issued. If engineering services are provided in 2006 that are not billable according to HOAI, but no invoice is issued, the claim for remuneration expires on December 31, 2009.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.